Devi S. v Minister for Immigration, Local Government & Ethnic Affairs
[1993] FCA 595
•28 JULY 1993
SHOBNA DEVI v. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
and DOUGLAS SIMPSON, MAGISTRATE, FAIRFIELD LOCAL COURT
No. NG89 of 1993
FED No. 595
Number of pages - 7
Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
GUMMOW J
CATCHWORDS
Immigration - statements false or misleading in a material particular - made in respect of grant of visa - contrived marriage - operation of the Migration Act to render the application an illegal entrant - application from order of review - "jurisdictional facts".
Migration Act 1958, ss. 14, 20, 35, 60
Kyung Chol Kim v The Minister for Immigration, Local Government and Ethnic Affairs (Wilcox J, 26/2/93, unrep.)
Eatts v Dawson (1990) 21 FCR 166
Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348
HEARING
SYDNEY, 23 July 1993
#DATE 28:7:1993
Counsel and solicitors for the Applicant: Mr A.W. Bastian
instructed by Karam Ramrakha and Company.
Counsel and solicitors for the first Respondent: Mr N.J. Williams
instructed by the Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
(1) The Application for an Order of Review be dismissed.
(2) The Applicant pay the First Respondent's costs and the Second Respondent's costs as submitting party.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
GUMMOW J The second respondent in this matter has filed a submitting appearance. The first respondent, whom I will call "the respondent", is the true or active disputant with the applicant.
On 23 February 1993, an officer of the Department of the respondent wrote to the applicant a letter headed, "Notice of Status Under Section 20 of the Migration Act 1958". The letter, omitting formal parts, read as follows:
"This is to advise you of your status in Australia due to the operation of section 20 of the Migration Act 1958. That section applies to you as you meet the description of a person defined in paragraph 2(b)(ii) of that section because your application for residency based upon your marriage to Peter John Sutherland contained information that was false and misleading in a material particular. Under sub-s. 14 (2) of the Act you are an illegal entrant from 20 June 1990 because your permanent entry permit was cancelled by operation of subsection 35(2) of the Act. Your status as an illegal entrant means that you are not entitled to work in Australia without the written permission of the Secretary of the Department of Immigration, Local Government and Ethnic Affairs. It is an offence under section 83 of the Migration Act for an illegal entrant to work without permission and the penalty imposed may be a fine of up to $5000. You have until the expiry of 7 working days from the date you receive this letter to lodge a valid permissible application for an entry permit or to advise your arrangements for departure from Australia. Failure to do either of these things may lead to a Deportation Order being signed against you."
On the same day, a Delegate of the respondent signed an instrument stating that the visa granted to the applicant on 20 June 1990 was cancelled. The reason stated for the cancellation was that the applicant had gained resident status by means of a contrived marriage to Peter Sutherland. The applicant seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977, apparently on the footing that the steps taken on 23 February were decisions under the Migration Act 1958 ("the Act").
However, counsel for the respondent correctly, in my view, submits that the present case is to be characterised in the same way as Kyung Chol Kim v The Minister for Immigration, Local Government and Ethnic Affairs, an unreported decision of Wilcox J delivered 26 February 1993. His Honour described that case as not one where the status of the applicant arose out of the exercise adversely to the applicant of a statutory discretion. Rather, if the applicant was an illegal entrant under the Act, this was because of the operation of the Act itself. If the conduct of the applicant did not make the applicant an illegal entrant pursuant to the Act, no administrative decision could give that status.
Accordingly, the issue is whether the evidence now before this Court establishes the facts upon which the statute operates to render the applicant an illegal entrant. Counsel described the issue as "jurisdictional" in character and therefore is one for the Court on the evidence presented; see Eatts v Dawson (1990) 21 FCR 166 at 171, 189.
By a motion filed 13 July 1993, the respondent sought dismissal of the application. It is preferable to deal with the proceeding on the basis of a final hearing. This I have done.
I turn first to the statutory provisions. Counsel for the applicant said that he had no quarrel with the interpretation of the law contended for by counsel for the respondent. The relevant provisions are contained in Reprint 3 of the Act. This included amendments effective as at 31 December 1989. The Reprint has to be read together with further changes effected, in particular, by the Migration Amendment Act 1991 (No. 86 of 1991), the Migration Amendment Act (No. 2) 1991 (No. 196 of 1991) and the Migration Amendment Act (No. 2) 1992 (No. 84 of 1992).
Sub-section 35 (2) provides that where, because of the operation of sub-s. 14 (2), a person is an illegal entrant, even though that person holds a valid entry permit, the entry permit "shall be taken to have been cancelled" upon the later to happen of the entry of the person into Australia, or the grant of the entry permit.
Sub-section 14 (2) renders in certain circumstances a person an illegal entrant if at any time while that person remains in Australia he or she is not a citizen and does not hold a properly endorsed valid entry permit or properly endorsed valid entry visa. The circumstances are that the person in question has entered Australia before or after the commencement of sub-s. 14 (2) and is a person to whom sub-s. 20 (1) applies. Sub-section 20 (1) is a lengthy provision. The respondent relies upon the operation of sub-para. (c) (ii). Omitting other elements of the subsection, it states:
"This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if when, or before, a visa was granted or issued on any occasion in respect of the person, he or she made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a statement that was false or misleading in a material particular."
Finally, s. 60 provides that the respondent after considering prescribed matters and no others, may order the deportation of a person who is an illegal entrant under any provision of the Act.
I turn now to the facts. The applicant was born on 31 December 1970 in Suva. She attended school for 11 years and from her oral evidence appears to be proficient in English. The applicant arrived in Australia on 4 January 1989. On 17 February 1989 she went through a ceremony of marriage with Mr P.J. Sutherland. When she arrived in Australia the applicant had been issued with a temporary entry permit. This had been valid until 4 February 1989.
On 21 February 1989, the applicant made a statutory declaration in support of an application for the grant of resident status on the grounds of marriage to a resident of Australia. The declaration was a document of 11 paragraphs. It stated:
"I, SHOBHNA (sic) DEVI SUTHERLAND, of 17 Woodgate Crescent, Mount Pleasant, New South Wales 2750, do solemnly declare: 1 I married Peter John Sutherland at Penrith Courthouse on 17th February 1989.
2 My marriage to Peter John Sutherland was not contrived for the purpose of obtaining resident status in Australia. 3 I and my spouse, Peter John Sutherland, intend to maintain a lasting marriage relationship. 4 I am not married to, nor do I have a de facto marriage relationship with, any other person. 5 When and where did you first meet? Saturday the 7th January 1989, in a party at Kingswood, New South Wales. 6 When did you decide to get married? 11th January, 1989. 7 I and my spouse have the following assets or undertakings in both our names: Joint bank account only, as we are proposing to purchase our house to live in as our own house shortly. We are renting at the moment, sharing flat with our friend paying $60 per week.
8 I and my spouse have the following joint interests. Our ways of life and interest are same. We love meeting people.
9 Give details of any children or other persons who live with you and your spouse:- We are staying at the house of our friends, we are paying nominal rent as our friends are helping us to acquire our own house. 10 I and my spouse PETER JOHN SUTHERLAND are not separated. 11 I will inform the Department if the marriage ends through divorce, separation or death."
The declaration is signed by the applicant and the declaration was made before a person signing "P.P. Ram, A Justice of the Peace".
Counsel for the respondent draws attention to two statements in the declaration. The first is the identification of the residential address of the applicant as "17 Woodgate Crescent, Mount Pleasant, New South Wales, 2750". The second is the statement, in para. 2 of the declaration, that the applicant's marriage to Mr Sutherland was not contrived for the purpose of obtaining resident status in Australia.
As a result of her application, on 20 June 1990 the applicant was granted both a permanent resident entry permit and a Class 154 visa for multiple travel before 20 June 1993. The visa was endorsed "resident return work unrestricted".
Counsel submits that the statements to which he refers in the declaration were "false or misleading in a material particular", within the meaning of para. 20 (1) (c) (ii) of the Act. Counsel refers to the construction of this phrase in s. 20 by the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 352. He submits that the address given was false and the marriage was contrived. The falsity of the address was material to the question of whether the applicant and Mr Sutherland were living together as spouses. Therefore, it is submitted that the facts triggered the operation of the statutory provisions to which I have referred, so as to give the applicant the status of an illegal entrant who is liable for deportation in the terms of s. 60 of the Act.
If sub-s. 20 (1) does not apply to the applicant, then sub-s. 14 (2A) may still operate to render the applicant an illegal entrant. As an alternative argument, the respondent relied upon what happened as material to the issue of the entry permit. In view of the conclusion I have reached on the first branch of the case, the second will not fall for decision. I turn to consider the evidence.
The applicant and Mr Sutherland were divorced on 8 November 1991. The applicant was detained and questioned at length by officers of the respondent at the Bankstown premises of the Department on 23 February 1993. A transcript of the interview, a document of 28 pages, is in evidence. After completion of the interview, an officer of the Department, Marielle Scavera, had a conversation initiated by her with the applicant. Miss Scavera gave affidavit evidence and was cross-examined. It was not put to her that her account of events was false or that she had fabricated a contemporaneous written note by her of the conversation of the applicant.
For her part, the applicant agreed in oral evidence that she had a conversation alone with Miss Scavera but denied that she had said the words attributed to her. I am firmly of the view that the account of Miss Scavera should be preferred. In this conversation, Miss Scavera asked, "How did this happen?". The applicant replied that it was not her fault and that she had done as her family had told her. She said, "If I go home to Fiji my parents are going to treat me bad. They are going to blame me". Asked, "So it was not a real marriage?", she replied, "No". The applicant agreed that her parents had paid Mr Sutherland money but indicated she did not know how much.
On 1 March 1993, Mr Sutherland was convicted at the Local Court at St James Centre, 111 Elizabeth Street, Sydney, of making on or about 21 February 1989 statements to an officer of the Department which to his knowledge were false in a material particular. Mr Sutherland gave evidence in the present proceeding and was cross-examined. In 1984 a friend of his, Mr Christopher Moir, who also gave evidence, introduced Mr Sutherland to a man he now knows to be Paul Maharaj. He is sometimes called Paul Ram. Mr Sutherland's evidence is that in 1985 Mr Maharaj, in exchange for payments in all of $2000, arranged to contrive a marriage between Mr Sutherland and one Manjula Wati with a view to facilitating the residency in Australia of that person. Mr Sutherland described the marriage as not having been genuine and as having been "for immigration purposes only". In about 1988, he was told that he was no longer married and a divorce had been obtained.
Mr Sutherland's evidence, which I accept, is that he was paid by Mr Maharaj $2500 in exchange for entering into another marriage "for immigration purposes", this time with the applicant. The marriage took place on 17 February 1989 at the Penrith Court House. However, at this time Mr Sutherland had commenced an association with a woman who is now Mrs Christina Sutherland. They were married on 5 June 1992. Mrs Sutherland swore an affidavit upon which she was not cross-examined. She said in it:
"On the 17th February 1989 Peter came to my place in the morning. Late in the afternoon Peter said that he had to go, but he didn't say where, and that he would return that night. He returned that night at approximately 7.30 pm."
Mr Sutherland's evidence is that after the wedding on that day he went back to Mr Maharaj's house where Mr Maharaj "told me more things I needed to know for the immigration papers". In cross-examination, the applicant's evidence was that on the very day of the marriage, 17 February 1989, she moved in with Mr Sutherland to premises at 66 Bringelly Road, Kingswood, where she lived with Mr Sutherland for four months or maybe a bit longer. Mr Sutherland's evidence was that in February 1989 he was living with his parents at 112 Wilkes Crescent, Tregear. He continued to do so save for a period in March and April when he moved in with Christina at her mother's house. In May 1989 Christina moved into the house with Mr Sutherland's parents.
Some time in September 1989, Mr Sutherland told Christina that he had married another woman so that she could stay in Australia, and that he had been paid money by Mr Paul Maharaj to do this. He told Christina that he had not yet obtained a divorce from this woman. This prevented them from getting married on the date which they had set, 17 February 1990. This account of events by Mrs Sutherland was not challenged.
Evidence also was given by Mr Moir. His account of events was not sought to be impeached in the course of his cross-examination. He said that for the first two or three days after their arrival, the applicant and her mother stayed at 66 Bringelly Road, Kingswood. The premises were owned by a brother of Mr Ram. At this stage Mr Moir was living in a flat at the back of the premises. Within a week of their arrival the applicant and her mother moved into the house of a relative at Meadowbank. Mr Moir gave an account of his acting as go-between between Mr Sutherland and Mr Ram in obtaining Mr Sutherland's agreement to marry the applicant for money to help her gain resident status in Australia. He said that between February and June 1989 he visited Mr Peter Sutherland several times and met Christina. They were living at the house of Mr Sutherland's parents.
In her statutory declaration, which is dated 21 February 1989, the applicant gave her address as 17 Woodgate Crescent, Mt Pleasant, N.S.W., 2750. The applicant said in cross-examination that she was living at this address when she first came to Australia. When referred to earlier oral evidence that she had moved in with Mr Sutherland to an address in Kingswood on 17 February, that is to say four days before the date of the declaration, the applicant agreed that she had never lived at the Mount Pleasant address and that the statement of that address in the declaration was false. I should add that an affidavit by Paul Maharaj was filed in this proceeding for the applicant on 27 May 1993. The affidavit was not read.
I prefer the evidence of the witnesses for the respondent to that of the applicant insofar as there are conflicts which bear upon the central question of the falsity of the statement in the declaration that the marriage to Mr Sutherland was not contrived for the purposes of obtaining resident status in Australia for the applicant. That evidence also indicates the falsity of the address which is stated in the declaration. In any event, as is indicated above, the falsity of that particular is admitted in cross-examination by the applicant.
Having regard to the evidence as a whole, this is a clear case in which before the grant of the visa the applicant made to an officer or a person exercising powers or performing functions under the Act, and in respect of the grant of that visa, statements which were false or misleading in a material particular. The result is that the statutory provisions to which I have earlier referred operated to render the applicant an illegal entrant.
The application will be dismissed. The applicant must pay the costs of the first respondent and of the second respondent, the latter as a submitting party. I should indicate the result of those orders disposing of the proceeding in the Court is to bring an end to the interlocutory orders made on 10 March. The interlocutory orders required the release of the applicant from custody.
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